762 F2d 1013 United States of America v. One 1973 Chevrolet Pickup

Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

NO. 84-1085

United States Court of Appeals, Sixth Circuit.

3/28/85

Appeal from the United States District Court for the Eastern District of Michigan Southern Division

This is an appeal from the judgment of the District Court ordering the forfeiture of four motor vehicles under 21 U.S.C. Sec. 881(a)(1). On June 25, 1982, officers of the Saginaw and Bay County (Michigan) Sheriff's Departments executed a warrant authorizing them to search the home and vehicles registered to the name of Justice, for cocaine, cocaine paraphernalia and money from the sale of cocaine. Cocaine was found in two locations in the motorhome, and marijuana cigarettes in each of the three remaining vehicles subject to forfeiture. Two of the vehicles searched were registered to El Mercado, a business owned and operated by the Justices; no registration check was run on the vehicles prior to conducting the search. Appellants contend that the District Court erred in ruling that the officers had probable cause to search the vehicles, and that the Justices could not rely on the 'innocent owner' exception to the forfeiture statute.

I.

2

The search warrant in question was granted on the basis of the affidavit of an officer of the Saginaw Sheriff's Department. The District Court held that the affidavit for the warrant established probable cause. We need not review whether this is in fact the case. The evidence obtained pursuant to the execution of the warrant is excepted from the exclusionary rule under the good faith exception of United States v. Leon, 104 S. Ct. 3404 (1984). The affidavit and warrant are not so facially deficient that the warrant could not reasonably be presumed to be valid, 104 S. Ct. at 3421-22, nor is there any allegation or indication that the issuing judge 'was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth,' Id. at 3421 (citing Franks v. Delaware, 438 U.S. 154 (1948)), under which circumstances the Court suggested that the good faith exception would not apply.1

3

Since the validity of the search may be resolved on the basis of the good faith exception, it is also unnecessary to consider whether the affidavit in its allegedly defective form is sufficient under Illinois v. Gates, 462 U.S. 213 (1983), totality of the circumstances approach to support a finding of probable cause. This case is not one in which 'resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates,' such that the substantive question need be resolved 'before turning to the good-faith issue.' Leon, 104 S. Ct. at 3422 (footnote omitted).

II.

4

The Justices cannot claim the benefit of either of the two statutory exemptions to 21 U.S.C. Sec. 881--for common carriers, Sec. 881(a)(4)(A), and for stolen conveyances, Sec. 881(a)(4)(B). Therefore, they are relegated to the judicially created 'innocent owner' defense. To assert this defense, an owner must prove 'not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property.' Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689 (1974) (footnote omitted) (dicta).

5

Mr. Justice testified that his son who was living with him had been expelled from school for a drug problem, and that, while his son had access to all the family-owned vehicles, Mr. Justice was maintaining close supervision over him. He also testified that his employee had access to the pickup and motorhome. This employee pleaded guilty to a drug-related offense based on the seizure on June 25, 1982, of controlled substances at the Webber Street business address.

6

To assert the 'innocent owner' defense, lack of intent to distribute or knowledge of the presence of contraband substances is insufficient to establish 'innocence.' See United States v. One 1975 Mercedes 280S, 590 F.2d 196, 198-99 (6th Cir. 1978).2 For example, in Calero-Toledo, the Court permitted forfeiture of a yacht against a lessor-owner with no knowledge that the boat was being used to transport narcotics, because it had not been proven 'that the company did all that it reasonably could to avoid having its property put to an unlawful use.' 416 U.S. at 690. In the instant case, not only were narcotics found in all four vehicles, albeit in modest amounts,3 but 9.8 pounds of marijuana and 42 grams of cocaine were found in the garage, 410 grams of marijuana were found in the basement freezer, and rolled and packaged marijuana found in the Justice's bedroom (which Mr. Justice claimed that he had confiscated from his son and was holding to show to his wife). Not only does Mr. Justice's claim to have been unaware of the presence of all narcotics save those he claims to have confiscated strain credulity, the pervasive presence of narcotics undermines any attempt by him to argue that he was doing all he reasonably could to prevent his property from being put to an unlawful use. See United States v. One 1973 Buick Riviera Automobile, 560 F.2d 897, 901 (8th Cir. 1977) ('[A]ppellant was on notice of the possibility that his son was involved with narcotics. Moreover, he allowed his son to operate the Buick, apparently with little restriction . . ..').

7

The judgment of the District Court is affirmed.

8

WELLFORD, Circuit Judge, concurring.

9

I concur fully in the judgment of the court. United States v. Leon, 104 S. Ct. 3404 (1984), would preclude application of the exclusionary rule to this set of facts. I also believe, moreover, that the warrant was valid under the standard recently established in Illinois v. Gates, 462 U.S. 213 (1983). '[P]robable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully reduced to a neat set of legal rules.' Id. at 232. I am convinced that here 'the magistrate had a 'substantial basis for . . . concluding' that a search would uncover evidence of wrongdoing.' Id. at 236 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). As established long ago and reemphasized in Gates, 'the Fourth Amendment requires no more.' 462 U.S. at 236.

10

Further, the manner in which the warrant was executed does not alter this result. The vehicles searched were registered either in Justice's name or the name of his business, his 'alter ego.' Justice concedes that he and his wife were the sole owners of this business, and acquired and used the vehicles registered in the business' name. Hence, I do not believe that the officers went beyond their authority under the warrant in searching these vehicles as well as those actually registered in the name of Justice himself.

11

Finally, before an innocent owner defense may succeed, the owner must establish 'not only that he was 'uninvolved in or unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property . . .." United States v. One 1951 Douglas DC-6 Aircraft, 525 F. Supp. 13, 15 (W.D. Tenn. 1979) (citation omitted), aff'd, 667 F.2d 502 (6th Cir. 1981), cert. denied sub nom. Zaragoza Y. v. United States, 462 U.S. 1105 (1983). Here, Justice has failed to carry this burden. I accordingly join in affirming the judgment of the district court.

The motorhome and pickup were registered to El Mercado rather than Justice. The District Court concluded that it was not unreasonable to search those vehicles in executing the warrant in question:

[T]he reasonable actions of officers executing a warrant may also be authorized by a non-technical, commonsense reading or interpretation of a warrant. See United States v Combs, 468 F2d 1390, 1392 (6th Cir 1972). Cf. People v. Kinnebrew, 75 Mich App 81, 254 NW 2d 662 (1977). The question of reasonableness is to be determined in light of the total atmosphere of the case. United States v Townsend, 394 F Supp 736, 747 (ED MI 1975).

Thus, courts have upheld the search of vehicles where the warrant authorized a search of a lot and a cabin and the vehicle was parked near the cabin, Brooks v United States, 416 F2d 104 (5th Cir 1969) cert denied, 400 US 840 (1970); where the warrant referred to premises known as 3027 Napoleon Avenue as well as describing 'a large multiple story wooden-frame residential dwelling' and the automobile was parked in the driveway on the premises, United States v Napoli, [530 F.2d 1198,] 1200-1201 [(5th Cir. 1976)?; and where the warrant specified a search 'on the premises known as 256 Seadrift Road' it was found sufficiently particular to permit a search of a vehicle parked on the premises, close to the house. United States v Freeman, 685 F2d 942, 955 (CA 5, 1982). The fact that a vehicle is searched, thought not accurately described in the warrant does not necessarily make the search invalid. See United States v Cole, 628 F2d 897, 899 (5th Cir 1980), cert denied 450 US 1043 (1981). In Cole where the warrant authorized a search for drugs, at 'the premises' described as a family dwelling which was the rear apartment of a particular address and the warrant also authorized the search of a specific motor vehicle, the search of a truck which was in a carport attached to the rear apartment was within the scope of the warrant although it did not match the vehicle described in the warrant. Id.

Appellants no longer dispute the validity of the search on grounds other than the facial invalidity of the warrant.

It is not necessary, as appellants contend, for the government to establish any nexus between either the vehicle or Mr. Justice and narcotics transactions. Once the government has established probable cause for forfeiture, which was established by the discovery of drugs in the vehicles, the burden shifts to the owner to show that the vehicle should not be forfeited. See United States v. $83,320 in United States Currency, 682 F.2d 573 (6th Cir. 1982)